Roberts Decision on Obama ‘Pep Rally’ to Send Message

Jan. 21 (Bloomberg) -- John Roberts won’t have to say a
word to make a statement in the next few days.

The chief justice, like his U.S. Supreme Court colleagues,
must decide whether to attend President Barack Obama’s Jan. 25
State of the Union address. Last year, Roberts sat passively as
Obama drew a standing ovation from congressional Democrats by
criticizing the court’s just-issued campaign finance ruling.

Since then, Roberts has questioned whether the justices
should continue to attend the annual speech, which he likened in
March to a “political pep rally.” Samuel Alito, who famously
mouthed “not true” as Obama spoke, plans to skip the event and
instead will be in Hawaii for a speech he will give at a law
school the next day.

“Any who attended last year but don’t this year will be
sending the message that they were offended by Obama’s attack,”
said Lucas A. Powe Jr., a Supreme Court historian who teaches at
the University of Texas School of Law.

Their absence would potentially shine a light on the
ideological and party-based divide that often runs through the
court. The court’s contingent at the speech might consist
largely -- perhaps even entirely -- of Democratic appointees.

Of the five Republican-nominated justices, three attended
last year: Roberts, Alito and Anthony Kennedy, who hasn’t said
whether he will go this year. The other two, Antonin Scalia and
Clarence Thomas, skipped the event and have suggested they will
do so again next week. Those five formed the majority in the
campaign finance ruling, which freed corporations to spend money
on political ads.

Three of the court’s four Democratic appointees -- Ruth
Bader Ginsburg, Stephen Breyer and Sonia Sotomayor -- attended
last year. The fourth, Elena Kagan, was nominated by Obama in
May.

‘Explicit Disaster’

Should only the Democratic appointees go, “that would be
an explicit disaster, as everybody ought to realize well ahead
of time,” said David Garrow, a historian at Cambridge
University in the U.K. who writes about the court. “If things
devolve to where it looks like an implicit indication of support
or non-support for whoever the current president may be, that’s
a big negative for the court.”

The court’s spokeswoman, Kathy Arberg, confirmed today that
Alito won’t attend. She said she didn’t know the other justices’
plans.

A decision not to attend would mark a change in Roberts’s
approach to his job. In his five years as chief justice, Roberts
has taken on the mantle of the judiciary’s public face,
distinguishing himself from his more insular predecessor and
former boss, William Rehnquist. He has attended every State of
the Union since taking his oath in 2005.

Subtle Shift

Roberts’s absence might also mark a subtle shift in his
relationship with Obama. Last year’s State of the Union aside,
Roberts’s public dealings with the president have been
unfailingly cordial. When Obama attended Kagan’s ceremonial
investiture at the court last year, Roberts turned to the
president and told him, “You are always welcome here.”

Even when Roberts voiced misgivings about the State of the
Union in speaking to law students at the University of Alabama
in March, he aimed his remarks more at the cheering lawmakers in
the audience than at the president who drew their applause.

“The image of having the members of one branch of
government standing up, literally surrounding the Supreme Court,
cheering and hollering while the court, according to the
requirements of protocol, has to sit there expressionless, I
think is very troubling,” Roberts said. “And it does cause you
to think whether or not it makes sense for us to be there.”

Awkward Position

Alito said in October that the event has become awkward for
the justices, forcing them to sit “like the proverbial potted
plant,” according to an Associated Press account of a speech he
gave at the Manhattan Institute in New York.

Justices have voiced similar misgivings for decades, said
Mark Tushnet, a constitutional law professor at Harvard Law
School. The recently retired Justice John Paul Stevens
traditionally skipped the speech regardless who the president
was. Scalia follows a similar practice.

“Historically, there’s been a sort of persistent, low-level sense that there’s something odd about the justices
attending the State of the Union address,” Tushnet said.

Some commentators have suggested the court might make a
collective decision about attending this year. Roberts
discounted that possibility in October, saying during a forum at
Canisius College in Buffalo, New York, that the decision is “up
to each individual member of the court.”

One possibility is that the shooting rampage in Tucson,
Arizona, will make the justices more likely to attend. At a Jan.
12 memorial service, Obama appealed to the nation for unity, and
some lawmakers say they will break with tradition by sitting
alongside members of the opposing party during next week’s
speech.